C.122 - Gas meter case

I. From this brief account of the proven facts, the following should be highlighted: the business of which Fernando is the administrator lacks the mandatory authorisation to carry out gas meter inspection work, and therefore it is not lawful to charge a fee for this service. On the other hand, the revision of the meters is a service that users are obliged to provide by contracting these services from third parties.

II. On the basis of these facts, and without introducing variations on them, we will analyse the case jointly for Fernando and his employees, until such time as a separate analysis between the various interveners is required.

II.1 . Going to a home, checking the gas meter markings and apply for to pay for this service are processes that cannot be carried out unless they are the product of human conduct, and are seen as such by any person who witnesses this process: specifically, by the tenants of the homes, users of the gas supply installations, who allow the reviewer meters to pass and pay the requested amount. The element of human conduct is present in final.
II.2. With regard to the possible criminalisation of this conduct (leaving aside the possible infringement management assistant for carrying out checks on installations without the required authorisation), it is appropriate to distinguish between the goal and subjective aspects, and then refer to each party separately.
In the case of goal, the presence of a person at the home of the complainant is a causal factor for what happens next: checking the meter, application for payment and making the payment. It is necessary to check whether these last two sequences, in addition to being causal, also carry the risk inherent to any subject (i.e. whether they are typical or not). We focus on the subject of fraud (art. 248) which requires causing sufficient deception (i.e. of sufficient importance in quantitative and qualitative terms) to a person, who falls into error; this error leads him to make a movement in favour of a person (either the same person who deceives, or a third party) who acts with the intention of making a profit. Well, by presenting himself at an address as employee of "Mancomunidad de Gas, S.L." the employee generates the appearance that he is a competent subject for this task (checking gas installations), this appearance generates an error in the Username, which draws the conclusion that this person is the competent one. In addition, a fee is charged for these services. Insofar as any person would fall into this error, we can understand that the error is relevant, and that it forms part of the errors that the legislator wishes to prevent in economic relations between private individuals (that no one should operate by pretending to be something they are not and charge a sum for it: the offence of fraud in Art. 248). If so, the goal aspect of subject is fulfilled. Note how the subject of fraud does not protect individuals against gas leaks, nor against explosions (for this there are already other types). The subject of fraud is intended to protect the assets of private individuals against misleading and deceptive movements. In our case, the individual in whose home the reading of meters and revision of installations is carried out, is not deceived about the reading of the meter, nor about the state of his installations, as nothing is said about the employee reviewer manipulating them, or certifying something false. This is not the problem. The problem is that the reviewer of the installations is not authorised to do so, as it is required to meet certain technical requirements skill that the Administration controls, in order to guarantee security. Well, if the meters and installations are checked by unauthorised persons, something is missing in order to comply with an obligation of the users: to have their installations checked by staff authorised. This is where the deception and error occurs: Username believes that it is up to date with the maintenance of its installations, when this is not the case, as the required authorisation is missing from business for maintenance and revision. Therefore, to demand payment for this service is to deceive the payer, who at all times assumes that the reviewer is a qualified person. Otherwise, he would turn to someone else. In final, the conduct makes the subject goal the offence of fraud.

Certain German criminal doctrine of the mid-19th century (Bauer, Köstlin, Hälschner, Langenbeck) was confronted with cases like this: during a hunt, a hunter causes another hunter to shoot at what he claims to be a game, when in reality it is another hunter, who dies from the shot. The one who shoots is in error (he does not respond, except...), and the one who made him shoot "did not shoot", so he cannot commit homicide. Who responds? It was then proposed that the man in the back, who does not execute, is in reality the perpetrator; and the man in front, who executes, is not the perpetrator. This is the moment when reflection on the structure of perpetration-by-means was born.

On the subjective aspect, it should be pointed out that if someone, not being authorised, carries out these inspection tasks, they know that they are inspecting gas installations, which is still not typical. What is typical is when they know that these inspections, although technically perfect, are administratively imperfect, as they lack authorisation. So to demand payment for this service is to demand payment for something that is not true. If, knowing this, they go ahead with their activity, there is malice. On the other hand, the profit motive required by Art. 248 is included in subject from the moment the payment of a price is demanded. It is therefore not necessary to dwell further on this element.
II.3 . For the rest, we see no relevant aspects that call into question the unlawfulness, culpability or punishability of the conduct.
II.4 . By now it will have been noticed that the status of the employee and the employer are very different. The unauthorised subject is the business of which Fernando is the sole administrator and representative. It is possible that his employees were not aware of the lack of authorisation at business: among other things, it is not their business; they are there to carry out reviews, not to apply for authorisations to the Administration. For this reason, the liability of the employees would be excluded because they were mistaken about elements of the subject, which would also be invincible (a employee cannot be required to cast doubt on the normality of the operations of its employer). The same is not true for Ferdinand: not only does he not appear to be in error, but he also uses the employees to make them act in error. We could say that the employees are instrumentalised in the service of Fernando, who "employs" them to make Username believe that everything is in order: that they check authoritatively and charge lawfully for this service. The lack of responsibility of the employees (who carry out the acts) is not transmitted to Fernando, who instrumentalises them (although he does not carry out the acts of subject): this is a structure of perpetration-by-means, in which one subject uses another as an instrument (art. 28.I). In this case, Fernando uses his employees to deceive others and to collect sums of money. In other words: although Fernando does not execute, he does carry out the subject. How? By means of an instrument, his employee, which works in status of error on the subject. They are not liable; Fernando is, and he is liable as the perpetrator of a fraud offence. The error of the employee falls on an element of the subject of fraud: this subject requires causing deception in another subject. Well, the employee, when demanding payment, does not know that he is deceiving, as he does what any person in those conditions would demand after performing that service. This is not a mistake as to the unlawfulness of his conduct, as the lack of authorisation to check the gas appliance is not an element of the subject fraud.

In the legal grounds of the SAP León, 1 December 2003, from which we have taken as our starting point here, we read: "Article 28.1 of the Criminal Code establishes that "Perpetrators are those who carry out the act alone, jointly or by means of another person whom they use as an instrument". This article covers the so-called "perpetration-by-means", which encompasses all those cases in which a person, the perpetrator-by-means, uses another person as an instrument for the execution of the punishable act, having complete control over the third party (instrument)". The PA rejected Fernando's appeal resource .

Another question that could be raised is the applicability of Art. 31. As it is business that lacks authorisation, only the latter could cheat. However, it should be borne in mind that this is not necessary, as Art. 31 covers a punishability gap in cases of special offences; but fraud is not, so there is no need for resource to refer to this precept. On the other hand, it would be possible to attribute liability to business, as provided for in Art. 251 bis.
II.5 . As has already been mentioned, we do not see any relevant aspects in subject of antijuridicity, culpability or punishability of this conduct. It only remains to point out that the typical conduct of fraud is punishable by a fine when the amount defrauded does not exceed 400 euros (Art. 249.II).

III. Conclusion: Fernando' s conduct, in addition to being typical (objectively and subjectively), is not justified (it is unlawful) and he is guilty and the acts are punishable. Fernando must answer for the crime of fraud, with a fine of one to three months; and the legal person should also be sanctioned. Despite the fact that it affects multiple injured parties, we are not considering the mass continuous offence (art. 74).

Cf. C.19, C.111 and C.52.

As can be seen, the participants in the case act without being mutually bound agreement; instead, one instrumentalises the other. But what happens when the interveners are not bound by this mutual agreement and there is no instrumentalisation either? In such a case each one would be responsible for what he does, without it being possible to attribute to them everything that the others do, since there is no mutual average agreement . Consequently, it is also not correct to speak of a functional distribution of tasks. Neither co-perpetration (C.121), nor perpetration-by-means (C.122). Each one is responsible for what he or she does "separately". Think of it at purpose de C.123.